I attended the Abbas v. Foreign Policy Group argument at the DC Circuit last week. (You can listen to the argument here). Here are my impressions. I agree with Politico that it seems unlikely that the Circuit will reverse the district court’s dismissal of the complaint as none of the three members of the panel quarreled with the district court’s reasoning. Rather, the central question in the appeal now appears to be whether the DC Circuit needs to conclusively decide whether the DC anti-SLAPP statute applies in federal court (the “Erie” issue) or whether it could sidestep that issue and …

The DC Circuit has announced that the Abbas v. Foreign Policy Group appeal will be heard on October 20, 2014 before Circuit Judges Kavanaugh, Srinivasan, and Senior Circuit Judge Edwards. For the background facts giving rise to the case, the proceedings in the district court and the issues on appeal, see my posts here, here, here, here, and here. For now, however, I thought I would take a quick look at prior defamation/libel/First Amendment decisions involving these judges.

The DC Circuit’s decision in Farah v. Esquire Magazine turned out to be a dud from an anti-SLAPP perspective. The court affirmed the district court’s dismissal of Farah’s Complaint, but did so under Rule 12(b)(6), thus mooting any consideration of arguments made under the DC anti-SLAPP act. The opinion is not a great surprise. In its brief to the DC Circuit, Esquire suggested that, because the Complaint was also dismissed under Rule 12(b)(6), the district court’s decision could be affirmed on this alternative basis. And the questions at oral argument (link here) did not focus on the anti-SLAPP act. Nevertheless, …

I have previously blogged about the panel that will be hearing the Farah v. Esquire appeal on October 3. Here’s a brief summary on the relevant background facts, the proceedings in the district court and the pertinent issues on appeal.

The DC Circuit has announced that the Farah v. Esquire appeal will be heard on October 3, 2013 before Circuit Judges Rogers and Brown and Senior Circuit Judge Williams. In a separate post, I will summarize the background facts giving rise to the case, the proceedings in the district court and the issues on appeal. For now, however, I thought I would take a quick look at prior defamation/libel/First Amendment decisions involving these judges. As explained below, for two of the judges on the panel, there will be a sense of déjà vu when the argument begins on October 3.

This morning, the DC Circuit issued a short opinion in which it affirmed the District Court’s ruling in Sherrod v. Breitbart, which had denied the defendants’ anti-SLAPP motion. Because the District Court’s ruling was not a final judgment ending the action, the DC Circuit first considered whether it even had jurisdiction to hear the appeal. After canvassing decisions from other circuits and a “terse, unpublished order” from the DC Court of Appeals, the court sidestepped the question because it found that its precedent on another issue completely resolved the case. In other words, the court assumed (without deciding) that it had …

Unfortunately, I was not able to attend this morning’s oral argument in the Sherrod appeal. The Legal Times’ summary is here. The Washington Post summary is here. And another summary is here. Both the Legal Times and the Washington Post articles point out that there are a variety of other issues in Sherrod that could prevent us from getting a definitive answer on whether the statute can be used in federal court, including whether the motion was timely made, whether it applies to conduct that pre-dated the statute’s effective date, or whether it can be immediately appealed (I’ve discussed all three issues here). …

While the Sherrod v. Breitbart appeal has attracted a lot of attention at the DC Circuit, there is another case that could resolve whether the DC anti-SLAPP statute applies in federal court: Farah v. Esquire. There, the plaintiffs/appellants are appealing the district court’s decision granting the defendants’ anti-SLAPP and 12(b)(6) motions and dismissing their false light, defamation, and Lanham Act causes of action. As alleged in the Complaint, a May 2011 post on Esquire’s politics blog contained fictional statements by publisher Joseph Farah that he would destroy the first-run print of Jerome Corsi’s book, Where’s the Birth Certificate? The Case …

The Sherrod v. Brietbart appeal is now fully briefed (opening brief here, opposition brief here, and reply brief here) and ready for the oral argument, scheduled for March 15, 2013. (The case has also attracted amicus briefs, including from the District of Columbia, the ACLU and Public Citizen, and a host of news organizations). The threshold question in Sherrod is whether the denial of an anti-SLAPP motion is immediately appealable under the collateral order doctrine of Cohen v. Beneficial Loan Corp. (The DC Court of Appeals recently held that it was not). Under Cohen, the appellants must show that the …

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